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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 1st February 2017)· [2017] KEELC 2119 (KLR)

Chabari Mungania v Felix Murithi Kirai & another [2017] KEELC 2119 (KLR)

Environment and Land Court
19 July 2017
LML. N. MBUGUA
882 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court froze all dealings with a farmer's land after forensic evidence suggested his signature on a bank charge was forged.

What this practically means

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Executive summary

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The plaintiff, Chabari Mungania, registered owner of land parcel LR. No. Abothuguchi/Kiija/740, moved the Environment and Land Court at Meru by Notice of Motion dated 1st February 2017 seeking orders of inhibition restraining any dealings with the suit property pending hearing and determination of the suit. He alleged that the defendants, without his knowledge, authority or involvement, fraudulently registered a legal charge over his land in favour of the 2nd defendant (whose predecessor was Fina Bank) to secure a loan facility advanced to the 1st defendant, forging his signature on the charge documents. He relied on an official search showing the registered charge, his continued possession of the original title deed, a DCI investigation and forensic document examination reportedly concluding the signatures on the charge document and Land Control Board application were made by different authors, and a statutory notice from the bank threatening to exercise the chargee's power of sale. He feared imminent loss of his land and irreparable damage. The application was served, but neither defendant filed a response. The court, L. N. Mbugua J, found it necessary to preserve the suit property while the dispute was being resolved and allowed the application, issuing orders of inhibition against any dealings with the parcel pending determination of the suit, with no orders as to costs. The judgment was delivered, dated and signed at Meru on 19th July 2017.

Key legal issues

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01

Whether to grant orders of inhibition over the suit property

Holding

The application was allowed unopposed; inhibition orders issued to preserve the property against any dealing pending determination of the suit, the applicant alleging the charge was procured by forgery

Reasoning

The applicant deponed he is the registered owner holding the original title deed; a charge was registered in favour of the 2nd defendant securing a loan to the 1st defendant; DCI forensic examination allegedly found the signatures on the charge and Land Control Board forms were made by different authors; a notice of exercise of chargee's power of sale had been issued; the application was served but no response filed, so preservation was warranted.

p. 3

Legal principles established

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  • Where a suit property is in dispute and unopposed, it is necessary to preserve it pending resolution of the dispute

Court orders

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  1. 1.Orders of inhibition issued restraining any dealing with Land Parcel LR. No. ABOTHUGUCHI/KIIJA/740 pending the hearing and determination of the suit
  2. 2.Application dated 1st February 2017 allowed with no orders as to costs
Jurisdiction invoked
Not expressly stated; inherent and statutory power to issue orders of inhibition pending determination of the suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chabari Mungania v Felix Murithi Kirai & another [2017] KEELC 2119 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 1st February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2119/eng@2017-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.